HSBC; Helped needed

[bambinaia]

Hi

Having a few problems with HSBC, which I have been trying to sort out for my other half & wondering if anyone can point me in the right direction.

1st, HSBC loan with PPI.

I wrote to HSBC on the 2-03-09 regarding the mis-sold PPI.

In between received letters from Moorcroft.

Sent account in dispute 18-05-09 to Moorcroft stating HSBC dealing with issue, which has not, been resolved.

The bank finally responded with an offer on the 29-04-09.

I replied on the 20-05-09 querying how they arrived at the figure & what would happen to the existing loan given that there still remained an element of the PPI attached to the loan.

I have never had a response to that letter.

Received a letter from Moorcroft on the 8-07-09 asking that I contact them to arrange a repayment plan.

What should I write to Moorcroft.

I also intend to now submit a complaint to the FOS regarding the PPI just trying to work out how to word it.

2nd, HSBC credit card.

17-03-09 HSBC wrote saying that they were passing account to DCA within 7 days.

2-04-09 letter received from Capquest stating HSBC has appointed them as managing agent.

7-04-09 I sent CCA request.

9-04-09 capquest response account on hold for 28 days

7-05-09 Letter sent ‘account in dispute’

12-05-09 Capquest respond they are not in breach of CCA Act 1974 & they have 12 working days + 1 calendar month.

7-07-09 Letter from Metropolitan “please telephone our office immediately to confirm when full repayment will be made”.

The bank has also from the initial account in dispute letter sent to their acting agent have continued to add interest to the account + I have never received the CCA.

Whilst with all the above they are trying to confuse everything by passing to DCA’s & then to their own in house collectors how do I stop this & what do I need to write & to whom do I write, HSBC, Capquest or Metro?

I hope I’ve made myself clear but any help I would be grateful because they’re beginning to *??”+= I think it’s better I don’t type that bit LOL.

[johnnymitch]

HI again bambinaia

 

You could try sending Moorcroft something like this (suitably amended)regarding the PPI :

 

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

ACCOUNT IN DISPUTE

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original/DCA** and has been since xx xxx xx.. Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

As the original Creditor has not paid me the reclaim amount which was agreed via .........(enclose a copy of the letter if you have it ) this account was in serious dispute when it was accepted by you .

Now I would respectfully suggest that this account is returned to the **original/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

Send the bank a call up letter for your CCA :

 

Reference ....... (your letter of xx xxx xx)

I am disappointed that you have failed to respond to my request for a copy of my Loan agreement to which I am entitled under the Consumer Credit Act 1974 (Sections 77−79). A copy of this letter is attached for your convenience.

I have previously enclosed a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

I understand a copy of our credit agreement should be supplied within 12 working days.

I am sure you also understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

Failure to respond positively will be reported to the Financial Ombudsman Service and the Office of Fair Trading.

Yours faithfully

 

 

our complaints procedure and how to complain

 

 

And btw, Capquest are wrong ...... they have 12working days + 2 days (post time) before they are in breach of the Act - and they know it !

 

 

Come back if you need more help Bambinaia:)

[bambinaia]

Hi Johnnymitch,

thank you for that.

 

Your 2nd para refers to 'Loan Agreement', this was a CCA request for a credit card agreement. Would I use the same sort of outline & would s77-79 cover credit cards.

 

lastly & sorry if I'm coming across as dumb the time line for the credit card was HSBC, Capquest, Metropolitan. Original request for CCA was sent to Capquest who failed to provide the CCA. Given Metro are HSBC I'm confused! Do I send Metro letter or HSBC.

[johnnymitch]

Hi Johnnymitch,

thank you for that.

 

Your 2nd para refers to 'Loan Agreement', this was a CCA request for a credit card agreement. Would I use the same sort of outline & would s77-79 cover credit cards.

 

Yes , bambinaia, the same letter covers both , just change it to 'Credit Card Agreement '

 

lastly & sorry if I'm coming across as dumb the time line for the credit card was HSBC, Capquest, Metropolitan. Original request for CCA was sent to Capquest who failed to provide the CCA. Given Metro are HSBC I'm confused! Do I send Metro letter or HSBC.

 

If Capquest are the ones chasing the debt , and they are the ones you sent the CCA to (which they haven't provided) , then send Capquest the letter and tell them that , as this account is 'In Dispute' and was when they got it ...(if it was ) then it should be handed back to HSBC t be dealt with .

If they got it after it became 'In Dispute' , then Capquest are in the frame - they have got to produce the goods to prove they have authority to collect ........ so send it to them ........ give them a time limit to produce - maybe 14 days (not working days ) before you report them to the Information Commissioner and the FOS .......

You could also add to the letter :

"PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec) "

That should force their hand one way or the other - if they haven't got them they'll either have to say so , or pass the buck back to HSBC , who will also have to say so .................

[bambinaia]

Brilliant that makes things clearer.

 

I'll let you know how it goes.

 

Lastly I'm doing my bank charges & I've done all the LBA's just need to do the POC. I've seen a template letter/N1 do I just use that?

 

I know once I've sorted all this I'll be soooo happy, one thing I know, I'm getting better at spellings:D

 

Thanks again for the help

[johnnymitch]

Sorry , missed a bit .......

 

I would also send Metro a letter asking how they have become involved in an account has been 'in dispute' since (date)due to the CCA not being produced. Tell them that it is Capquest or HSBC who have to comply with the CCA request of (DATE) which is now (?) days overdue...... and you will not discuss settlement until this has been done .

[johnnymitch]

You can use the one on the Templates link bambinaia,

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/113-4-particulars-of-claim-n1-updated-version-now-available

 

and it tells you at the foot :

 

Downloadable N1 form in pdf (note: You can not save data on this form, please print 3 copies, one for the court, one for the defendant and one for yourself, before closing).

[johnnymitch]

If you also look at iiyama's thread which I did earlier today , it'll help you with your POCs , N1 , and spreadsheet ......

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/208505-hsbc-address-n1-form.html#post2277568

[bambinaia]

I had a reply from Capquest saying that they have now handed everything back to HSBC regarding the credit card issue.

 

Metro however have sent a reply regarding the CC which interestingly fails to actually provide the CCA but instead chooses to waffle. The bulk of the letter I have pasted below.

 

Thank you for your letter dated 13 July 2009 requesting a copy agreement under the Consumer Credit Act regulations.

Please accept our apologies for you having to write with your concerns.

Firstly, please allow me to provide some clarity in regards to our company and the role we have in the collection of the debt owed to HSBC Bank. Metropolitan Collection Services Ltd are the wholly owned subsidiary of HSBC Bank which acts as the internal debt recovery arm of the Bank. Your account has now been passed to us for purposes of recovery' by HSBC Bank.

In response to your right under the Consumer Credit Act:

Section 78 (1) of the Consumer Credit Act 1974 requires us to provide a copy of the executed agreement if any. Regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 allows that certain items may be omitted from such copies, including the signature box and signature.

Therefore, the copy of the executed agreement we must supply is a copy but need not be a photocopy of the signed agreement. Regulation 7 of those regulations also requires us to provide a copy of the executed agreement, as varied, where there is a power to vary the terms of the agreement, which there is with your card agreement and that power has been exercised to vary the agreement, which again is the case with your agreement.

We have therefore enclosed an up to date copy of the terms and conditions applicable to your account, a copy of the latest variation notice issued in respect of your account and a blank copy of the agreement form. The agreement form contains the original terms and conditions that you accepted when you entered into the agreement. Clause 6.1 gives the Bank the right to vary the terms and conditions. The variation notice shows that the terms have been varied and therefore in accordance with this legislation the up to date terms and conditions are the appropriate information to produce.

Appendix 1 Current Terms and Conditions Appendix 2 Notice of Variation to Terms Appendix 3 Blank Copy Agreement Form Appendix 4 Historic Terms and Conditions

I have placed your account on hold for a further two weeks to enable you to submit your proposals for repayment of this account.

I trust this clarifies matters.

What would be the best approach now & how would I respond to the above.

With regards to the Moorcroft issue & the PPI I have heard nothing.

[bambinaia]

After reading through a few (loads) threads I've found this letter.

 

RE; Credit Card Formal Complaint Letter Before Action

 

Thank you for your letter dated xxxxx the contents of which are noted.

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware, failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter, which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours sincerely,

 

Would it be right to send something like this in response to their lack of the CCA given noone wants to provide anything like the original/copy of the agreement.

 

The Credit Card has now been in dispute more than 66 (working) days so whether or not this suggests that there is no agreement one can only hope sorry I meant guess:lol:.

[Castlebest]

That looks fine to me bambinaia I would send it to HSBC with a copy to Metropolitan.

 

Pete

[bambinaia]

I've had a response if you can call it that!!!!

 

I wrote to Metro as per my letter post 10. The response I've had back bacially says;

 

"Thank you for your letter dated the 1st September 2009, concerning your request for a copy agreement for the above account.

 

Please be advised that a response to these matters was sent to you on the 16th July 2009. I enclose a copy of this communcation for your ease of reference.

 

I will place your account on hold for a futher two weeks to allow you to submit your proposals for repayment of this account.

 

We trust this clarifies matters".

 

Clarifies what??? I've had no CCA only a blank one along with a load of terms & conditions and Metro banging on when are you going to pay.

 

What is the best way to go with this seeing as they won't send it back to HSBC (as asked) to deal with & they are saying that they have complied with my request in the fact they say;-

 

"S78 of the Consumer Creit Act 1974 requires us to provide a copy of the executed agrement if any. Reg 1983 allows that certain items may be omitted from such copies, including the signature box and signature".

 

What do I do now because I feel like I'm on a merry-go-round.

[vint1954]

The copy has to be a true copy. It can omit signatures and signature date, but thats about all. This is due to the fact that when the law was written, there were no photocopiers, so the agreement had to be coppied by hand or later on a typewriter, but it had to be a copy of the agreement that you signed. That was the intention of the law, if not it is pointless. How can they confirm that it is a True Copy of the document that was signed.

 

I have had this fight for 7 months with them.

 

They keep insisting that the agreement is a true copy, however I have pointed out that it cannot be on many occasions. The one point that they have not picked up on is that the card was originally with Midland.

Edited September 12, 2009 by vint1954

[bambinaia]

So where does that leave me??

 

It was that long ago the so called blank 'true copy' of the agreement I wouldn't know if it was one like this I signed or not!!

 

So if Metro want my proposal for payment, what am I paying and what about the agreement that I agreed.

 

What a lovely mess.

[vint1954]

Most of the CC companies are trying this tack, where they have no agreement.

 

They know that they are wrong. I have killed 5 trees sending them long letters, explaining where they have failed. They just ignore them, fingers in their ears and La la la la la la.

 

If you have disputed the agreement in detail, not much you can do bar sit back and wait for their next response.

 

These are the arguments that I have used.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a generic agreement which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974. I have to date only received terms and conditions from yourselves.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

 

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

 

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

What is a true copy:

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

I also refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

 

I am now granting to you a further 7 days to produce a copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I look forward to your response.

[bambinaia]

Thanks for that.

 

If you don't mind could I amend your letter to suit my personal circumstances & send it to them?

 

I've never written so much since I left school & that was some 20+ years ago!

 

The only thing I can say is my knowledge is growing & spelling is improving LOL

[vint1954]

No problem, Send it to HSBC.

 

Ms Packwood should have a few of these.

 

I wish it was only 20 years since I left School.

 

However my spelling is aslo imporverting=**

Edited September 12, 2009 by vint1954

[vint1954]

More info in this one. Obviously edit and delete as appropriate.

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN SERIOUS DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute.

 

On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request:

 

1. Supplying only a generic agreement

2. Supplying only terms and conditions.

3. Supplying an illegible copy.

4. Supplying an application form which does not contain the prescribed terms.

5. Supplying a reconstructed agreement.

 

The documents that you have supplied, cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me.

 

As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a 1,2,3,4, or 5, cannot be a True Copy of an Executed Agreement.

 

You will be aware that the rules and regulations governing regulated credit agreements are in place to protect BOTH lender AND borrower. If the lender fails to follow the rules then the lender must accept the consequences. It is no different from any other branch of the law.

 

What is a true copy:

 

In a recent responses to Letters from a growing number of MP’s, the enforcement department of the OFT responded in writing, where the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

The above details that any “True Copy” that is supplied by yourselves, must indeed be a copy of the executed ( signed ) agreement and not a reconstruction or fabrication. In short it must be copied from the original agreement, but can for obvious reasons, omit signatures and date of signature.

I also refer you to the information below.

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

S61 of the consumer credit act 1974.

 

 

s61(a) CCA - Signing of agreement:

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

s127(3) Consumer Credit Act 1974:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer.

 

The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty.

 

Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

While this account remains in serious dispute, I remind you of the the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

 

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data or information with a third party such as a credit reference agency. (To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.
  The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office)
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

In addition, as you have sent the above mentioned documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

 

 

I maintain that this alleged debt is completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading.

 

For cancellable agreements, you can find the guidance at:

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf

 

For non-cancellable agreements, you can find the guidance at:

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft019.pdf

 

For your further convenience, I also refer you to the guidance on Debt Collection here:

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

 

At the very least, an Agreement must contain the following within the signature document (on the same side) to be enforceable, even in court (see agreement Regulations 61(1)):

 

1. A credit limit or a statement as to how this will be determined.

2. An APR.

3. A schedule of repayments.

 

These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include but are not limited to:

 

1. Details of default charges.

2. Statements of protection for customers.

 

What you have sent me fails to include all of the information needed to make it enforceable, and therefore it is completely unenforceable under Section 127 of the Consumer Credit Act 1974. For your information, you can find a copy of the CCA 1974 here:

 

Consumer Credit Act 1974

 

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007 which is not the case here. For information on this, you can see the 2006 Act here:

 

Consumer Credit Act 2006 (c. 14)

 

I refer you particularly to the Transitional Provisions outlined in Schedule 3, which confirm that the repeal of Section 127 is NOT retrospective.

 

You are saying that the documents you have sent me do comply with the CCA 1974. In that case, given the FACTS I have outlined above, perhaps you could direct me to all of the prescribed and required terms in the “Agreement” you have sent me given the fact that it should be on the same page as the signature, I think you will find that they are not there.

 

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

 

 

 

I am now granting to you a further 7 days to produce a copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

Your further non-compliance will result in complaints being forwarded to the relevant statutory bodies.

 

 

 

I look forward to your response.

[bambinaia]

Thank you, thank you.

 

I'm looking forward to the response for this one

[vint1954]

Don't send the whole thing. You will need to edit out as required, especially check the text in red.

[bambinaia]

Hi everyone,

I've now had a response from Metro telling me that they have complied with the Consumer Credit Act & if I'm not satisfied to take it to the FOS. Their response is below;

 

I am sorry that you remain dissatisfied and have found it necessary to write again.

Having had the opportunity to consider all aspect of this dispute, including your comments and those of my colleagues, I am satisfied we have responded to the issues that are relevant and have a bearing on your Credit Card Account, which is regulated under the Consumer Credit Act 1974.

The Bank has clearly explained it position on this matter and has already advised you that it has supplied you with the documentation it is legally obliged to provide, in compliance with Consumer Credit Legislation.

Under Section 77/78 of the Consumer Credit Act 1974, you have been supplied with:

• A copy of the historic Credit Card Agreement Terms, for which you signed your acceptance at the inception of the account.

• A copy of the current Credit Card Agreement Terms.

• A stamped and signed invoice/statement confirming the debt balance.

• Notice of Variation

 

Section 78 (1) requires us to provide a copy of the executed agreement. Regulation 3(2) of the Consumer Credit Regulations 1983 (Cancellation Notices and Copies of Documents) allows that certain items may be omitted from such copies, including the signature box and signature. Therefore, the copy of the executed agreement we must supply was a copy; we do not need to provide a photocopy of the signed agreement.

It is apparent to me that we are not likely to come to an agreement regarding liability for the repayment of the account.

It is for this reason that the Financial Ombudsman Service (FOS) allows a period of 8 weeks to resolve disputes and where this is not possible, the scheme allows the matter to be referred to them for adjudicationI can confirm that this letter now denotes our final response to you over the issues raised.

Matters will be held in abeyance for a period of 30 days to await the reference given to you by the FOS, alternatively if you do not wish to continue your dispute, please may we respectfully ask that you submit your proposals for repayment without delay.

I hope that this resolves matters in satisfaction of your complaint, if you remain dissatisfied you now have the option of referring the matter to the Financial Ombudsman which you will need to do within six months of the date of this letter. Full details are contained in the attached leaflet..

 

FINAL RESPONSE

 

We hope that you will be entirely happy with the attached response, and as a consequence your complaint can now be considered resolved.

Should this not be the case, and you remain dissatisfied, we are obliged to advise you of your right to refer your complaint to the Financial Ombudsman Service, as this letter constitutes our Final ResponseFurther information about the Ombudsman scheme can be found in the enclosed leaflet, and should you decide to refer your complaint to them, you must do so within six months of the date of this letter.

Clearly, we do hope that you will not find this course of action necessary..

 

Whilst I'm more than happy to write to the FOS I am a little concerned.

 

With what I have read the FOS don't like to get involved and simply say

"you've had the money pay it back".

 

However my argument is if they Metro/HSBC can't produce the appropriate CCA how do I know what they're asking for is right.

 

I am already dealing with the Local Government Ombudsman on another issue & know how vital it is to get the wording of the complaint 100% right.

 

Any advice on how to approach the letter of complaint to the FOS would be greatly appreciated, after all why should any bank be allowed not to do what is required by law because I have to do what is required by law or suffer the consequences!!!

[middenmess]

I see that this has been going on a while now so have HSBC or Metro issued a default notice on this account.

 

Have any charges/interest been added since you started the dispute?

[johnnymitch]

Hi bambiniaia:)

 

from the bank's letter : " Therefore, the copy of the executed agreement we must supply was a copy; we do not need to provide a photocopy of the signed agreement."

If they've got it .....why don't they produce it ?

 

 

If they haven't got it , they're obliged by law to tell you so - but if they're going in the huff and not discussing it any further - send copies of what you've got , with the above letter to FOS .

 

You could also consider starting court action to make them produce it - see lee32uk 's thread :

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/188794-hsbc-cca-non-compliance.html

 

I think vint has also been down this road before you bambinaia, so be guided by his advice too.......... no doubt he'll be along soon .......

[vint1954]

Hi Johnny and bambiniaia.

 

I certainly have been down this very road for some months now.

 

They quote s78 and it's requirements correctly ( Section 78 (1) requires us to provide a copy of the executed agreement.)

 

 

They need to remember however that an executed agreement is one that has been signed!

 

Then go on to quote ( Regulation 3(2) of the Consumer Credit Regulations 1983 (Cancellation Notices and Copies of Documents) allows that certain items may be omitted from such copies, including the signature box and signature.) Correct but inapropriate in my view.

 

Then ( Therefore, the copy of the executed agreement we must supply was a copy; we do not need to provide a photocopy of the signed agreement.) Probably correct, but if they are not going to copy it from the actual agreement, then they are wrong.

 

As the OFT point out:

 

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

"Must be an exact copy and not some reconstruction of what the original might have been"

 

I have been arguing with them since February this year. They stick to their interpretation of the act, simply because they do not have an agreement to send you, as Johnny says.

 

I have just kept on batting it back to them. Once you have proved that their argument and interpretation of the law is flawed, there is little else that you can do.

 

They cannot go to court and win, without the agreement.

 

As Johnny says, if you realy do want a copy of your agreement, then you need to go to court to get it, however that is unlikely to produce what they do not have.

 

The FOS will probably not help but worth a try. They suggest this course as the FOS usually comes down on the side of the creditor, strengthening their case.

 

I always like to have the last letter in the file, so I would just respond along the lines of:

 

Your assertion that you and your client have complied with s78 CCA 1974 is incorrect, as I have clearly detailed to HSBC in writing on xxxxxxxxx.

 

Your suggestion that I refer this matter to FOS, will be followed along with complaints to the OFT, trading standards and my MP.

 

Optional:

 

In addition, as you have sent the above mentioned documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

 

 

I maintain that this alleged debt is completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading.

 

 

At the very least, an Agreement must contain the following within the signature document (on the same side) to be enforceable, even in court (see agreement Regulations 61(1)):

 

1. A credit limit or a statement as to how this will be determined.

2. An APR.

3. A schedule of repayments.

 

 

 

You are saying that the documents you have sent me do comply with the CCA 1974. In that case, given the FACTS I have outlined above, perhaps you could direct me to all of the prescribed and required terms in the “Agreement” you have sent me given the fact that it should be on the same page as the signature, I think you will find that they are not there.

 

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

 

 

About all you can do unless you feel happy going to court.

[bambinaia]

Thank you to both johnnymitch & vint1954.

 

In response to middenmess having looked through the paperwork that I have, I can't find a default notice only a final demand. I have also noticed that interest has continued to be added that is up until I received the last statement which was in June 09 (I haven't received any more statements since June). The CC went into dispute as of the 29th April 09.

 

The so called 'agreement' which Metro purport to be sufficient, is a blank copy which is headed 'credit card request form' & under the heading is the wording 'credit agreement regulated by the consumer credit act 1974'.

 

The last letter I wrote did cover s172 in fact with the help of vint1954 (thank you again) this is what I sent them;

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute.

 

On 7th April 2009, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request:

 

1. Supplying only a generic agreement

2. Supplying only terms and conditions.

3. Supplying an application form, which does not contain the prescribed terms.

4. Supplying a blank agreement.

 

The documents that you have supplied, cannot be linked to any agreement which you claim that I have with you. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

Contrary to your assertion, HSBC have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have with me.

 

As you will be further aware, an agreement is not executed, until signed by both parties, so the papers that you have supplied

cannot be a True Copy of an Executed Agreement.

 

You will be aware that the rules and regulations governing regulated credit agreements are in place to protect BOTH lender AND borrower. If the lender fails to follow the rules then the lender must accept the consequences. It is no different from any other branch of the law.

 

What is a true copy:

 

In a recent responses to Letters from a growing number of MP’s, the enforcement department of the OFT responded in writing, explaining what is required.....

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

The above details that any “True Copy” that is supplied by yourselves, must indeed be a copy of the executed ( signed ) agreement and not a reconstruction or fabrication. In short it must be copied from the original agreement, but can for obvious reasons, omit signatures and date of signature.

I also refer you to the information below.

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

S61 of the consumer credit act 1974.

 

 

s61(a) CCA - Signing of agreement:

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

s127(3) Consumer Credit Act 1974:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer.

 

The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty.

 

Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

While this account remains in serious dispute, I remind you of the the relevant main points of the Law and OFT regulations while the account is in this state and remain in default are:

You may not ask for payment against this account.

I am not obliged to offer any payment against this account.

You cannot register any data or information with a third party such as a credit reference agency. (To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office)

You cannot take any enforcement action, including registering Defaults.

You cannot pass the account on to a third party for collection.

You cannot sell the account.

In addition, as you have sent the above mentioned documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

Section 172 states:

172 Statements by creditor or owner to be binding

 

(1) A statement by a creditor or owner is binding on him if given under-

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©.

 

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing this alleged debt in the future.

What you have sent me fails to include all of the information needed to make it enforceable, I maintain that this alleged debt is completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court.

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007, which is not the case here.

However within your last correspondence you state “The copy of the executed agreement we must supply is a copy but need not be a photocopy of the signed agreement” and therefore the documents you have sent me do comply with the CCA 1974. In that case, given the FACTS I have outlined above, perhaps you could direct me to all of the prescribed and required terms in the “Agreement” you have sent me given the fact that it should be on the same page as the signature, I think you will find that they are not there.

 

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

Your further non-compliance will result in complaints being forwarded to the relevant statutory bodies.

 

I look forward to your response.

 

 

I must admit I've never written soo many letters & had sooo many C*$p replies:eek:.

 

I'll have to think about what it is I'm going to write back now given I think most issues have been covered. The bit I'm really not looking forward to is the FOS. If & only if they side with Metro/HSBC where would that leave me & if I don't write to them (FOS) what would be my best course of action in dealing with Metro????

 

Does anyone know if HSBC have taken anyone to court when someone has been asking for a CCA which they haven't produced & what was the outcome. If only I had a crystal ball:grin: